132 nd IPU Assembly Hanoi (Viet Nam), 28 March - 1 April 2015 Governing Council CL/196/12(b)-R.1 Item 12 30 March 2015 Committee on the human rights of parliamentarians Mission report to Zambia 22-25 September 2014 ZM01 - Michael Kaingu ZM11 - Maxwell Mwale ZM02 - Jack Mwiimbu ZM12 - Kenneth Konga ZM03 - Garry Nkombo ZM13 - Annie Munshya Chungu (Ms) ZM04 - Request Muntanga ZM14 - Howard Kunda ZM05 - Boyd Hamusonde ZM15 - Michael Katambo ZM06 - Moono Lubezhi (Ms.) ZM16 - James Chishiba ZM07 - Dora Siliya (Ms.) ZM17 - Hastings Sililo ZM08 - Mwalimu Simfukwe ZM18 - Lucky Mulusa ZM09 - Sarah Sayifwanda (Ms.) ZM19 - Patrick Mucheleka ZM10 - Lt. Gen. Ronnie Shikapwasha ZM20 - Eustacio Kazonga Table of contents A. Origin and conduct of the mission ..................................................... 2 B. Information gathered during the mission ........................................... 3 D. Observations and recommendations, including in light of developments since the mission ....................................................... 11 * * * CL/196/12(b)-R.1 - 2 - 30 March 2015 A. Origin and conduct of the mission 1. The situation concerns 20 Zambian parliamentarians, whose case was first submitted to the IPU Committee on the Human Rights of Parliamentarians at its 143 rd session (January 2014). On that occasion, the Committee declared the case admissible and expressed some preliminary concerns about the merits of the case. 2. The Committee’s concerns relate to allegations of arbitrary arrest and detention, of lack of due process in proceedings against parliamentarians, alleged violations of the rights to freedom of opinion and expression, freedom of assembly and association, allegations of ill-treatment and other acts of violence and allegations of the arbitrary invalidation of parliamentarians’ mandates. The case has to be placed in the context of the legislative and presidential elections that took place on 20 September 2011 and that led to the election of Mr. Michael Sata from the Patriotic Front as the country’s new President and produced a hung parliament. 3. In light of the high number of members of parliament concerned in the case, the diversity and complexity of the allegations and the relevance of the overall political context of the case, the Committee considered that it would be useful to carry out an on-site mission to Zambia for the purpose of enhancing its understanding of the issues at play through first-hand exchanges with the relevant executive, parliamentary and judicial authorities, the complainants and other interested parties. T he Speaker of the National Assembly stated, at a hearing with the Committee at its 144 th session (March 2014), that such a mission would be more than welcome. 4. The Committee designated its then President, Mr. Juan Pablo Letelier, to conduct the mission from 22 to 25 September 2014, dates which were mutually agreed with the parliamentary authorities. Mr. Letelier was accompanied by Mr. Rogier Huizenga, IPU Human Rights Programme Manager and Secretary of the Committee. 5. The Committee delegation met the following persons: • Executive authorities - Dr. Guy L. Scott, Vice-President of the Republic of Zambia - Dr. Ngosa Simbyakula, Minister of Home Affairs - Mr. Keith Mukata, Deputy Minister of Justice - Mr. Gabriel Namulambe, Deputy Minister of Foreign Affairs - Ms. Juliana Shoko Chilombo, Director, Parliamentary Business Division, Office of the Vice- President • Judicial authorities - Mr. Musa Mwenye, Attorney General - Mr. Mutembo Nchito, Director of Public Prosecutions • Parliamentary authorities and staff - Rt. Hon. Justice Dr. Patrick Matibini, SC, MP, Speaker of the National Assembly - Hon. Mkondo Lungu, Deputy Speaker of the National Assembly - Ms. Doris Katai K. Mwinga, Clerk of the National Assembly - Dr. G.H.N. Haantobolo, Deputy Clerk - Procedures • Police authorities - Mr. Solomon Jere, Deputy Inspector General of Police • Political parties - Mr. Hakainde Hichilema, President, United Party for National Development (UPND) - Mr. W.K. Mutale Nalumango, National Chairman, United Party for National Development (UPND) - Dr. Nevers Mumba, Leader, Movement for Multiparty Democracy (MMD) • Members of parliament concerned - Hon. Michael Zondani Katambo - Hon. Garry G. Nkombo - 3 - CL/196/12(b)-R.1 30 March 2015 - Hon. Howard Kunda - Hon. Moono Lubezhi (Ms.) - Hon. Annie Munshya Chungu (Ms.) - Hon. Request Muntanga - Hon. Kenneth Konga - Hon. Maxwell Mwale - Hon. Jack Mwiimbu - Hon. Sarah Sayifwanda (Ms.) • Other parliamentarians - Hon. Ruben R. Phiri Mtolo, Party Whip, Member of Movement for Multiparty Democracy (MMD) - Hon. Lazarus Chungu Bwalya, Vice-President, Foreign Affairs Committee • National Human Rights Commission - Ms. Florence Chiwesha, Director, Human Rights Commission - Ms. Chibesa Maimbo, Principal Legal Counsel, Human Rights Commission • Diplomatic community - Mr. James Thornton, British High Commissioner to Zambia • Others - Mr. McDonald Chipenzi, Executive Director, Foundation for Democratic Process (FODEP) - Mr. Rupiah Banda, Former President of Zambia 6. The delegation wishes to place on record its appreciation for all the steps taken by the parliamentary authorities to ensure the maximum fulfillment of its mandate. It also wishes to express its gratitude to the then Vice-President of Zambia, Mr. Guy Scott, who took time out of his busy schedule to meet the delegation twice. B. Information gathered during the mission 1. The context of the case: The alleged persecution of the political opposition On the basis of the conversations that the Committee delegation had with the authorities, complainants and other interested parties, it was clear that the following issues provided the essential backdrop for understanding the case of the individual members of parliament before the Committee: • The September 2011 legislative elections produced a hung parliament with sixty seats for the Patriotic Front (PF), 55 for the Movement for Multiparty Democracy (MMD) and 28 for the United Party for National Development (UPND). Members of parliament belonging to the opposition told the delegation that after the elections the balance of power in parliament swiftly changed in favour of the PF as a result of: (i) court petitions asking for the disqualification of all 55 MMD seats (several of those petitions were subsequently withdrawn); (ii) offers of ministerial and deputy ministerial posts made to members of MMD and UPND. • The contents, use and interpretation of the Public Order Act, including with regard to the role and discretion of the police. According to the opposition parliamentarians, the Act was being used discriminately as a tool to intimidate and harass them. The authorities acknowledged that there were challenges regarding the Act, but stated that everything was being done to administer it fairly. • Several government and judicial officials stated that there were real concerns about corruption for which there had to be zero tolerance. The opposition, however, stressed that most, if not all, of the cases brought against political opponents were not based on any evidence, but were politically motivated. In this respect, it should also be noted that it was often mentioned that clear and comprehensive rules governing the financing of political parties and political campaigns were absent. CL/196/12(b)-R.1 - 4 - 30 March 2015 • Discussions about a new political constitution that would provide a different blueprint for Zambia’s state structures, including with regard to the powers of the President, which the opposition held were too excessive. 2. Concerns related to the Public Order Act 2.1. Controversy over the Public Order Act 2.1.1 The Public Order Act (POA) dates back from colonial times and aims at regulating public gatherings in the interest of ensuring public order. In a 1995 landmark decision, the Supreme Court ruled that the requirement that organizers of such public meetings had to obtain a police permit for holding public gatherings contravened the constitution and was therefore illegal. When the act was amended, the permit requirement was replaced by a requirement for organizers of meetings and processions to give fourteen days’ written notice to the police and to provide marshals, among other things, who would cooperate with the police to ensure peace. The fourteen days’ notice was subsequently reduced to seven through a further amendment. However, although the act includes a grievance procedure in cases where the police have not permitted a meeting, it still states that announced meetings and processions may not be held if the police determine that they would not be able to ensure law and order. Opposition members of parliament have emphasized therefore that in practice the “notice” requirement has had the same effect as the “permit” requirement in the past. 2.1.2 In a statement made to the National Assembly on 17 July 2013, the Minister of Home Affairs stated that, under the POA, informing the police was in no way intended to be a pre-condition for parliamentarians to hold their public meetings. He stated that they “may hold such meetings or public rallies without informing the Zambian police at their own peril if trouble should arise in distant places where the Zambian police are not present and aware of such public meetings or public rallies.” He concluded that “members of parliament are free to proceed to their constituencies anytime, any day to go and perform the functions of their offices.” In a statement to the National Assembly on 24 September 2013, the